The only point raised in this case is, whether the certificate of the officer who took the deposition objected to is sufficient. He states that he did not give the defendant Runnels, nor his counsel, notice, as neither lived within one hundred miles of the place where the deposition was taken. This may be true, it is alleged, and yet one or both of them might have been in New Orleans, or near to it, at the date of the certificate.
The law requires that a 'notice shall be made out and served on the adverse party or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption,' &c. The officer taking the deposition is presumed to know the residence of the party entitled to notice, as the person at whose instance the deposition is taken is bound to communicate that fact to him. But beyond this, he cannot be presumed to know or required to certify. If, in the words of the act, he certifies 'that the adverse party or his attorney is not within one hundred miles,' he is presumed so to state from the known fact that the residence of neither is within the distance specified. If the party or his counsel live within the hundred miles, a notice left at his residence would be good.
Where the party entitled to a notice lives more than one hundred miles from the place where the deposition is taken, and the officer so certifies, it would be sufficient, although it might be proved that such party was within the distance specified at the time, if the fact were unknown to the officer and the person in whose behalf the deposition was taken. The certificate may be controverted by parol proof, especially in regard to the facts stated of which the magistrate is not supposed to have official knowledge. And if it were made to appear that the person entitled to notice did not live one hundred miles from the place of the caption of the deposition, or if he were known to the magistrate or the party to be temporarily within that distance, where a notice might be served on him, though his residence might be more than one hundred miles distant, without a notice, the proceeding would be irregular and the deposition inadmissible.
Upon the whole, we think the certificate under consideration was sufficient, and that the deposition, on the ground stated, ought not to be overruled.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and on the point and question on which the Judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court that the certificate under consideration was sufficient, and that the deposition, on the ground stated, ought not to be overruled. Whereupon it is now here ordered and adjudged that it be so certified to the said Circuit Court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse